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The Reception of International Law in the European Court of Human Rights$
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Magdalena Forowicz

Print publication date: 2010

Print ISBN-13: 9780199592678

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199592678.001.0001

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State Immunity

State Immunity

Chapter:
(p.283) VII State Immunity
Source:
The Reception of International Law in the European Court of Human Rights
Author(s):

Magdalena Forowicz

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199592678.003.0008

This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.

Keywords:   jus cogens, torture, erga omnes, State immunity, international legal rules, domestic law

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